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Ross v. U.S.

argued: September 30, 1993.

JOHN DOE; JANE DOE, APPELLANTS,
v.
AMERICAN RED CROSS; AMERICAN NATIONAL RED CROSS; THOMAS JEFFERSON UNIVERSITY; JOSEPH GROVER, M.D.; SCOTT MURPHY, M.D.; CARDEZA FOUNDATION. HARRY DOE; JANE DOE, H/W, APPELLANTS, V. AMERICAN RED CROSS; AMERICAN NATIONAL RED CROSS; GRADUATE HOSPITAL; LOUIS F. PLZAK, M.D.; DANIEL J. WOODY, M.D.



Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 92-04034. D.C. Civil No. 92-04037.

Before: Scirica, Alito and Aldisert, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

On June 19, 1992 in American National Red Cross v. S.G., 120 L. Ed. 2d 201, 112 S. Ct. 2465 (1992) (S.G.), the Court considered whether the "sue and be sued" provision in the Red Cross congressional charter, 36 U.S.C. § 2, conferred original jurisdiction on federal courts. The Court framed the issue before it as follows:

In this case we consider whether [the] "sue and be sued" provision confers original jurisdiction on federal courts over all cases to which the Red Cross is a party, with the consequence that the organization is thereby authorized to removal from state to federal court of any state-law action it is defending.

112 S. Ct. at 2467 (emphasis added).

The Court granted certiorari "to answer this difficult and recurring question," observing that "although more than 40 district court cases have considered this issue, no result clearly predominates" and that only two courts of appeals had met the issue and they had conflicting results. Id. at 2468 & n.1. The Court specifically held that "the Red Cross charter's 'sue and be sued' provision should be read to confer [federal] jurisdiction . . . [and that] the provision extends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction." Id. at 2472. In this appeal, we must determine whether S.G. authorizes the re-removal of a state-court action against the Red Cross.

The American Red Cross and the American National Red Cross (hereinafter "Red Cross") have been sued in state courts across the country by plaintiffs claiming that they contracted Acquired Immune Deficiency Syndrome (AIDS) through contaminated blood transfusions and that their injuries were caused by negligence on the part of the Red Cross. In a common pattern, the Red Cross removed these actions to federal court, only to have some of them remanded on the ground that its charter did not confer original jurisdiction on the federal courts. While these remanded cases were pending in state courts, the Court issued its order in S.G. authorizing the Red Cross to remove "any state-law actions it is defending." Id. at 2467. In response to S.G., the Red Cross typically removed the actions it was defending to federal court, and again plaintiffs sought remand.

These consolidated interlocutory appeals emanating from the Eastern District of Pennsylvania follow this general scenario. The cases were originally filed in the Common Pleas Court of Philadelphia County. Prior to the Court's decision in S.G., they were removed to the district court and later remanded to the state court "without prejudice to defendant's right to petition for re-removal" should ruling case law of the jurisdiction change during the life span of the case, stating that removal would be proper. App. at A.23. After the Court's decision, these actions against the Red Cross were again removed to the district court and again a petition to remand was made. On the strength of S.G., the petition to remand was denied, and the plaintiffs petitioned for interlocutory appeals.

This interlocutory appeal of consolidated cases requested by the district court and permitted by us under 28 U.S.C. § 1292(b) requires us to construe the removal statute 28 U.S.C. §§ 1446(b), 1447(a). We hold that removal in this case was proper and affirm the order of the district court.

I.

The following Section 1292(b) questions are presented from the district court's decision approving the re-removal and denying Appellants' second motion for remand:

(1) Whether the United States Supreme Court decision also authorizes the Red Cross to remove a previously remanded case to federal court.

(2) Whether the decision of an "unrelated" case - such as the decision of the Supreme Court in S.G. authorizing the Red Cross to remove from state to federal court any action it is defending - constitutes an "order or other paper" under 28 U.S.C. § 1446(b) and thus provides a basis for a second removal petition.

See App. at A.85. Section 1446(b) provides in relevant part:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

We believe that this appeal turns on the construction of this statute as applied to the Red Cross solely in the context that it was the litigant in a related case involving similar facts and legal issues and was the recipient of the order implementing the Court's decision. Our approach to this matter and our holding is much more confined than the precepts discussed by the parties before us. What controls the decision we reach today is our Conclusion that the S.G. opinion was an order addressed to the Red Cross and, as such, was an "order" as contemplated in Section 1446(b). It is not necessary for us to go any further; it is not necessary for us to interpret any language in Section 1446(b) other than the term "order." We hold that because the Appellee here was the critical party in American National Red Cross v. S.G. and "filed a notice of removal within thirty days" after receiving ...


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